Solar Sources, Inc.

Plain-English summary

Solar Sources contested three fire-extinguisher citations issued at three Indiana bituminous surface coal mines. Judge Alan G. Paez held that the preparation plant needed an extinguisher on its third level under 30 C.F.R. § 77.1109(a), even though other firefighting equipment was present. He also held that two wheeled water pumps were mobile equipment required to carry extinguishers under 30 C.F.R. § 77.1109(c)(1). The judge affirmed the three citations with penalties of $1,944, $100, and $392, for a stated total of $2,436. The official order also contains an incomplete line modifying an unidentified citation to low negligence with a $500 penalty, but that amount is not included in the stated total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1109(a), 77.1109(c)(1), and 77.1109(c)(3)
• Outcome: Three fire-extinguisher citations were affirmed for a total penalty of $2,436; the order separately contains an incomplete modification line that does not identify a citation.
• Key point: A preparation plant must have suitable extinguishers on each level, and wheeled pumps capable of being towed qualify as mobile equipment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, D.C. 20004

October 31, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner, 

v.

SOLAR SOURCES, INC., 

Respondent. 

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CIVIL PENALTY PROCEEDINGS

Docket No. LAKE 2009-373

A.C. No. 12-02374-177012

Mine: Shamrock Mine

Docket No. LAKE 2010-774

A.C. No. 12-01616-219593

Mine: Solar Sources #2

Docket No. LAKE 2010-902

A.C. No. 12-01732-225916

Mine: Craney Mine 

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION

Appearances:  Beau Ellis, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,

Colorado, for the Petitioner;

Mary M. Runnells, Esq., Solar Sources, Inc., Bloomington, Indiana, for the

Respondent.

Before:            Judge Paez

This case is before me upon the Secretary’s filing of her Petitions for Assessment of Civil
Penalty against Solar Sources, Inc. (“Solar Sources,” “the company,” or “Respondent”), pursuant
to section 105 of the Federal Mine Safety and Health Act of 1977 (“the Mine Act” or “the Act”),
30 U.S.C. § 815. Respondent timely filed its answers to the petitions, and these three dockets
were assigned to me for disposition. I approved a partial settlement on March 23, 2011, for two
violations contained in Docket No. LAKE 2010-902. Each docket now contains one citation.

I. STATEMENT OF THE CASE

The parties filed a Joint Motion to Consolidate the above-captioned dockets and stated in
their motion that none of the three alleged violations at issue in these three dockets involve a
factual dispute and that they wished to resolve the matter through summary disposition. I issued
a Consolidation Order and Briefing Order, which consolidated the above-captioned proceedings
and directed the parties to confer with each other, and to file any motions or briefs in support of
their positions on the alleged violations. I also permitted the parties to file a response to any
initial motion or brief. The parties subsequently filed simultaneous cross-motions for summary
decision, and Respondent filed a response to the Secretary’s motion.

The Secretary filed her Motion for Summary Decision, arguing that no genuine issue
exists as to any material fact and that she is entitled to summary decision as a matter of law.

Respondent timely filed its Brief on Summary Judgment, arguing the same, and subsequently
filed its Reply Brief on Summary Judgment fifteen days later, arguing that all three citations at
issue should be vacated.

II. ISSUES

A.        Secretary’s Arguments

The Secretary issued one citation to Respondent, arguing that failure to provide a portable
fire extinguisher on the third level of the coal preparation plant is a violation of 30 C.F.R.
§ 77.1109(a).

She argues that the presence of waterlines, outlet valves, and a fire hose does not
excuse Respondent from its responsibility to maintain the fire extinguisher. The Secretary also
issued two other citations to Respondent, arguing that a wheeled water pump is mobile
equipment and, therefore, was required to be equipped with a portable fire extinguisher pursuant
to 30 C.F.R. § 77.1109(c)(1).

B.        Respondent’s Arguments

Respondent argues the first citation should be vacated because its reading of section
77.1109(a) does not require a fire extinguisher on the third level of its coal preparation plant. It
argues it complied with the regulation by having a portable fire extinguisher within the structure
cited by the Secretary. With regard to the two other citations, Respondent argues that portable
fire extinguishers are not required on its water pumps, inasmuch as the water pumps should be
deemed auxiliary equipment rather than mobile equipment under section 77.1109(c)(1).

To be entitled to summary decision, a party must establish by motion that there exists no
genuine issue as to any material fact and that the party’s evidence is legally sufficient as a matter
of law. 29 C.F.R. Part 2700.67; see Lakeview Rock Products, Inc., 33 FMSHRC 2985, 2987
(Dec. 2011). Here, the parties have filed their cross-motions and have stipulated to the material
facts. Thus, the only questions before me concern matters of law.

The issues before me are as follows: (1) whether Respondent violated mandatory safety
standard 30 C.F.R. § 77.1109(a) when it did not have a fire extinguisher located on the third level
of the Shamrock Mine’s Preparation Plant; (2) whether Respondent violated mandatory safety
standard 30 C.F.R. § 77.1109(c) when it did not have a fire extinguisher on water pumps located
at Solar Sources #2 or Craney Mine; and, (3) if any violation of a standard is found, whether the
proposed penalty is appropriate under section 110(i) of the Mine Act.

For the reasons that follow, the Secretary’s motion for summary decision is GRANTED,
and Respondent’s motion for summary decision is DENIED.

II. FINDINGS OF FACT

The relevant facts are uncontested and contain no genuine issues as to any material fact.
They arise from three separate safety inspections, which were conducted at three separate Solar
Sources mines: Shamrock Mine, Solar Sources #2, and Craney Mine. The mines at issue are all
bituminous coal surface mines located in Dubois County, Indiana; Pike County, Indiana; and
Daviess County, Indiana, respectively. (Sec’y Mot., Ex. A.)

A.      LAKE 2009-373 (Shamrock Mine)

Citation No. 6682604, contained in Docket No. LAKE 2009-373 was issued by Inspector
Jason VandenBrook at the Shamrock Mine on December 15, 2008. (Sec’y Mot., Ex. B at 1;
Resp’t Mot., Ex. 1.) This section 104(a) citation was issued pursuant to 30 C.F.R. § 77.1109(a).
(Id.) The citation was served on Stephen Edwards, Safety Director, alleging the following:

The 3rd level of the preparation plant has no fire extinguisher
provided. Each structure presenting a fire hazard shall be provided
with portable fire extinguishers commensurate with the potential
fire hazard at the structure in accordance with the
recommendations of the National Fire Protection Association.

(Id.) The inspector determined that an injury was unlikely to occur, that if injury were to result it
could reasonably be expected to be fatal, that the violation was not significant and substantial
(“S&S”)

, that one person was affected, and that Respondent’s negligence was moderate. (Id.)
The Secretary proposes a penalty in the amount of $1,944.00 for the alleged violation. (Sec’y
Mot. at 11.)

The citation states further that the violation was terminated after the operator placed a fire
extinguisher on the third level of the preparation plant that same day. (Sec’y Mot., Ex. B at 1;
Resp’t Mot., Ex. 1.) The inspector mentions in his field notes that the mine had an escapeway
and a fire hose. (Sec’y Mot., Ex. B at 3.) Also present at the preparation plant were waterlines
and outlet valves. (Sec’y Mot. at 5.) In his affidavit, Stephen R. Edwards, Safety Director for
Solar Sources, Inc., states that there was no combustible material on the third level, and that the
coal which was present in other parts of the structure was sprayed with water as it entered the
preparation plant and remained wet throughout the process. (Resp’t Reply, Ex. 2.) Respondent
asserts that the preparation plant did not contain any dry coal. (Id.)

B.        LAKE 2010-774 (Solar Sources #2)

Citation No. 8425618, contained in Docket No. LAKE 2010-774, was issued by Inspector
William Faulkner at the Solar Sources #2 mine on March 23, 2010. (Sec’y Mot., Ex. D at 1;
Resp’t Mot., Ex. 2.) This section 104(a) citation was issued pursuant to 30 C.F.R.
§ 77.1109(c)(1). (Id.) The citation was served on Troy Fields, Safety Director for Solar Sources
Underground, LLC, and alleges the following verbatim:

Mobile equipment shall be equipped with at least one portable fire
extinguisher. Located in pit #003, on the north end is a 6 inch
water pump, company #1596. This water pump has no fire
extinguisher provided.

(Sec’y Mot., Ex. D at 1; Resp’t Mot., Ex. 2.; Resp’t Reply, Ex. 3.) The inspector found that an
injury was unlikely to occur, that if injury were to result it could reasonably be expected to result
in lost workdays or restricted duty, that the violation was non-S&S, that one person was affected,
and that Respondent’s negligence was moderate. (Id.) The Secretary proposes a penalty in the
amount of $100.00 for the alleged violation. (Sec’y Mot. at 11-12.) The citation states further
that the violation was terminated after the operator placed a new fire extinguisher on the water
pump. (Sec’y Mot., Ex. D at 1; Resp’t Mot., Ex. 2. )

In his affidavit, Keith Lutgring, Vice President of Mining Operations, states that,
“Portable water pumps are used to facilitate mining by removing water from operating areas and
to fill water trucks with water that is used for such purposes as to control dust on mine roads.”
(Resp’t Reply, Ex. 1.) He states further that the engine’s only purpose is to pump water, and that
miners’ only work near the pump to turn it on or off as it is self-operational. (Id.)

The parties agree that the water pump is not self-propelled but that it contains wheels and
is capable of being towed from one place to another. (Sec’y Mot. at 4, 9-10; Resp’t Mot. at 3.)
In his affidavit, Safety Director Fields states that the water pump is located within 100 feet of two
fuel tanks, each of which contains fire extinguishers. (Resp’t Reply, Ex. 3.)  

C.        LAKE 2010-902 (Craney Mine)

Citation No. 8425664, contained in Docket No. LAKE 2010-902, was issued by Inspector
William Faulkner at the Craney Mine on June 7, 2010. (Sec’y Mot., Ex. E at 1; Resp’t Mot., Ex.
3.) This section 104(a) citation was issued pursuant to 30 C.F.R. § 77.1109(c)(1). (Id.) The
citation was served on Safety Director Edwards and alleges the following verbatim:

Mobile equipment shall be equipped with at least one portable fire
extinguisher. A 4 inch water pump, company No.1606 has no fire
extinguisher at the time of inspection. This violation was observed
at the water truck loading area, in the Midway Pit area.

(Id.) The inspector found that an injury was unlikely to occur, that if injury were to result it
could reasonably be expected to result in lost workdays or restricted duty, that the violation was
non-S&S, that one person was affected, and that Respondent’s negligence was moderate. (Id.)
The Secretary proposes a penalty in the amount of $392.00 for the alleged violation. (Sec’y Mot.
at 11-12.) The citation states further that the violation was terminated after a fire extinguisher
was examined and placed on the water pump. (Sec’y Ex. E at 1; Resp’t Ex. 3.) The Inspector
recorded in his field notes that the operator disagreed that a fire extinguisher was required on the
water pump. (Sec’y Mot., Ex. E at 3.)

This water pump and the facts surrounding it are substantially similar to the facts related
to the water pump located at the Solar Sources #2 mine. See discussion infra, Part III.B.

III. PRINCIPLES OF LAW

Commission Rule 67 sets forth the guidelines for granting summary decision:

(b) A motion for summary decision shall be granted only if the
entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a
matter of law.

29 C.F.R. § 2700.67(b).

The Commission “has long recognized that [] ‘[s]ummary decision is an extraordinary
procedure,”’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under
which “the Supreme Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.”’ Energy West Mining Co., 16
FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981) and Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). See also Lakeview Rock
Products, Inc., 33 FMSHRC 2985, 2987–88 (Dec. 2011) (reiterating the Commission’s summary
decision rules).

In reviewing a record on summary decision, the Court must evaluate the evidence “‘in the
light most favorable to . . . the party opposing the motion,’ and [] ‘the inferences to be drawn
from the underlying facts contained in [the] materials [supporting the motion] must be viewed in
the light most favorable to the party opposing the motion.’” Hanson Aggregates New York, Inc.,
29 FMSHRC 4, 9 (Jan. 2007) (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464,
473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

IV. LEGAL ANALYSIS AND CONCLUSIONS OF LAW

A.        LAKE 2009-373

1.         Violation of 30 C.F.R. § 77.1109(a)

Citation No. 6682604 was issued to Respondent pursuant to section 77.1109(a). The
Secretary argues that the citation was properly issued because of Respondent’s failure to provide
a portable fire extinguisher on the third level of its coal preparation plant. Respondent counters
that a fire extinguisher is not required pursuant to the safety standard, and that the citation was
improperly issued. 

Section 77.1109(a) provides in pertinent part:

Preparation plants, dryer plants, tipples, drawoff tunnels, shops,
and other surface installations shall be equipped with the following
firefighting equipment.

(a) Each structure presenting a fire hazard shall be provided with
portable fire extinguishers commensurate with the potential fire
hazard at the structure in accordance with the recommendations of
the National Fire Protection Association.

30 C.F.R. § 77.1109(a).

MSHA’s Program Policy Manual (“PPM”) provides insight into the Secretary’s
interpretation of the applicable mandatory safety standard. The PPM states in pertinent part:

When questions arise concerning paragraph (a) [of section
77.1109], the standards presented in National Fire Protection Code
No. 10 shall be used as a guide. Generally, a minimum of one
extinguisher having a rating no less than 2A8B or 2A8BC where
electrical installations are present shall be provided on each floor
or level in the structure. At least one extinguisher shall be
provided for each 3,000 square feet of floor space.

Where the floor space exceeds 3,000 square feet, and more than
one extinguisher is required, they shall be no more than 75 feet
apart. If the area protected contains permanent electrical
installations, the maximum distance between extinguishers shall be
no more than 50 feet.

V MSHA, U.S. Dep’t of Labor, Program Policy Manual (“PPM”), Part 77, at 199 (2003)
(emphasis added).

Inspector VandenBrook issued Citation No. 6682604 because a fire extinguisher was not
present on the third floor of the preparation plant. The Secretary asserts that preparation plants,
such as the structure in question, innately present a fire hazard. (Sec’y Mot., Ex. F at 3.) In his
second affidavit, Inspector Faulkner states that, while he did not issue Citation No. 6682604, he
has personally conducted inspections at the preparation plant in question and is very familiar with
the common function and design of preparation plants. (Id.) He further states that preparation
plants contain a variety of combustible materials such as coal, conveyor belts, lubricants, and
electrical installations, which all present fire hazards. (Id.)

Respondent contends that “[n]either the citation itself nor the inspector’s field notes . . .
identify anything on the 3rd level of the preparation plant that presents a fire hazard.” (Resp’t
Reply at 1.) Respondent further contends that Inspector Faulkner’s second affidavit is short on
specifics, with regard to the preparation plant, and speaks only in generalities. (Id. at 2.)

Respondent’s contention that a fire hazard was not present on the third level at the time of
the inspection, thereby rendering the issued citation unwarranted, is mistaken. The mandatory
safety standard requires that a structure, which presents a fire hazard, must have portable fire
extinguishers commensurate with the potential fire hazard at the structure. 30 C.F.R.
§ 77.1109(a). The Secretary reasonably interpreted this regulation to require each floor or level
to maintain a minimum of at least one fire extinguisher. PPM, Part 77, at 199.

Respondent focuses on the “commensurate” language of the regulation and concludes a
fire extinguisher is not required on each floor of the preparation plant because a potential fire
hazard is not present on each floor. (Resp’t Reply at 2.) To accept this conclusion would be to
ignore the reality that fires are capable of starting in a number of manners, and of spreading.

Respondent explains that all of the coal in the preparation plant remained wet throughout
the process. This truth does not mean, however, that the coal has lost its ability to combust. The
Commission has recognized that even wet coal “can dry out, ignite, and propagate [a] fire.”
Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1121 (Aug. 1985). Such a fire, or any
number of fires, could spread throughout the preparation plant and cause substantial harm or
even death to miners. Consequently, the Secretary’s interpretation and proposed enforcement of
this provision, as published to the public in MSHA’s PPM, is reasonable.

I am mindful that Respondent maintains a fire hose, waterlines, outlet valves, and an
escapeway on the third level of the preparation plant, which could prove invaluable in the event
of a fire emergency. (Sec’y Mot., Ex. B at 3; Sec’y Mot. at 5.) However, I am also mindful that
water is not the best extinguishing agent for all fires. See Sec’y Mot., Ex. F at 3; see also Nats
Creek Mining Co., 17 FMSHRC 115, 129 (Feb. 1995) (ALJ) (examining a regulation requiring
battery charging stations to be located in noncombustible structures or areas equipped with fire
suppression systems and noting that “water on an electrical fire would only compound the
problem.”); LeBlanc’s Concrete & Mortar Sand Co., 11 FMSHRC 660, 677 (April 1989) (ALJ)
(observing that water fire extinguishers might create an electrical hazard). Moreover, according
to the Secretary’s interpretation of the regulation, fire extinguishers are required regardless of the
presence of any fixed fire suppression system. See PPM, Part 77, at 199 (making no mention of
fire hoses, waterlines, outlet valves, escapeways or other fire suppression equipment as an
alternative method of complying with the regulation). Respondent’s maintenance of a fire hose,
waterlines, outlet valves, and an escapeway on the third level of the preparation plant was a good
faith attempt to adhere to the safety standards related to fire safety. Yet, the PPM reveals
Respondent’s interpretation of the regulation to have been incorrect, even though Respondent
believed having a fire extinguisher in the building was commensurate with the fire hazard
presented. Accordingly, I conclude as a matter of law that Respondent violated section
77.1109(a). Citation No. 6682604 is therefore AFFIRMED as written.

2.         Penalty Amount

Under section 110(i) of the Mine Act, a Commission Judge must consider six criteria in
assessing a civil penalty, including the operator’s history of previous violations, the
appropriateness of the penalty relative to the size of the operator’s business, the operator’s
negligence, the penalty’s effect on the operator’s ability to continue in business, the violation’s
gravity, and the demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of a violation. 30 U.S.C. § 820(i).

Considering the factors enumerated in section 110(i) of the Mine Act, I agree that an
injury was unlikely to occur, but that if injury were to result it could reasonably be expected to be
fatal. I agree that the operator’s degree of negligence is moderate. I have also considered
Respondent’s history of violations and its demonstrated good faith in achieving rapid compliance
after issuance of the citation, as well as the penalty’s effect, if any, on the operator’s ability to
continue in business. Indeed, the operator obtained a portable fire extinguisher and quickly
abated the violation, as the inspector’s notes indicate that for abatement such a fire extinguisher
was eventually located on the third floor within a couple hours of his issuing the citation. Thus, I
determine that a penalty in the amount of $1,944.00 is appropriate for this violation.

B.        LAKE 2010-774 & LAKE 2010-902

1.         Violations of 30 C.F.R. § 77.1109(c)(1)

Citation Nos. 8425618 and 8425664 were issued to Respondent pursuant to 30 C.F.R.
§ 77.1109(c)(1). The Secretary argues that these citations were properly issued because of
Respondent’s failure to provide portable fire extinguishers on water pumps located on mine
property. Respondent counters that fire extinguishers are not required pursuant to the safety
standard, and thus these two citations were not properly issued and should be vacated.

Section 77.1109(c)(1), entitled “Quantity and location of firefighting equipment,”
provides that, “Mobile equipment, including trucks, front-end loaders, bulldozers, portable
welding units, and augers, shall be equipped with at least one portable fire extinguisher.”
However, this safety standard does not provide an exhaustive definition of “mobile equipment.”
Something that is “mobile” is defined as “capable of moving or being moved.” Webster’s Ninth
New Collegiate Dictionary, 762 (1986). In addition, the term “mobile equipment” is defined in
Part 56, which is applicable to surface operations at metal/non-metal mines. See Nat’l Cement
Co. of Cal., 27 FMSHRC 721, 733 (Nov. 2005). Section 56.2 provides in part, “Mobile
equipment means wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of
moving or being moved.” 30 C.F.R. § 56.2 (emphasis added). This term is applied broadly to
cover “every conceivable vehicle capable of being operated” on the roadway. Nat’l Cement, 27
FMSHRC at 733.

Moreover, the Commission has held that an operator’s failure to equip mobile equipment
with a fire extinguisher was a non-S&S violation of section 77.1109(c)(1). Manalapan Mining
Co., 18 FMSHRC 1375, 1381 (Aug. 1996). Further, where an operator failed to equip a forklift
with a fire extinguisher and the operator argued that the forklift was “auxiliary equipment,” the
Secretary’s citation issued under section 77.1109(c)(1) was nonetheless upheld. Pittsburg &
Midway Coal Mining Co., 6 FMSHRC 2141, 2145 (Sept. 1984) (ALJ).

The pertinent facts in these cases provide that these particular water pumps at issue
contain wheels, and thus are capable of being towed from one place to another. (Sec’y Mot. at 4,
9-10.) In applying Commission precedent to determine whether the term “mobile equipment”
encompasses the water pumps at issue here, I conclude that the water pumps are mobile
equipment as their wheels make it possible for them to be moved from one place to another. See
Manalapan Mining, 18 FMSHRC at 1381; see also Nat’l Cement, 27 FMSHRC at 733;
30 C.F.R. § 56.2. Because these water pumps are capable of traversing roadways and are thus
mobile, additional facts related to the water pumps’ engine designs, abilities to self-operate, and
so on, are of no import. Consequently, the water pumps are required to have fire extinguishers
on them under this mandatory safety standard.

Respondent submits that the Secretary’s argument regarding “mobile equipment” is
overbroad and that the Secretary should not have cited Respondent under section 77.1109(c)(1),
which requires mobile equipment to be equipped with a fire extinguisher. (Resp’t Reply at 4.)
Rather, Respondent believes the equipment should be regarded as “auxiliary equipment” and,
because of its proximity to two fuel tanks (each of which contains fire extinguishers), it should
be found in compliance with section 77.1109(c)(3). (Id.; Resp’t Reply, Ex. 3.)

Respondent’s argument is not without reason. Part 77 does not provide an exhaustive
definition of “auxiliary equipment,” nor has the Commission issued a decision which provides
for an exhaustive definition of auxiliary equipment, informing how to distinguish auxiliary
equipment from mobile equipment. Instead, section 77.1109(c)(3) enumerates examples of
auxiliary equipment subject to the safety standard. Examples of auxiliary equipment listed in this
section include the following: portable drills, sweepers, and scrapers. 30 C.F.R. § 77.1109(c)(3).

While the Commission has not thoroughly addressed the topic of auxiliary equipment, it
has from time to time dealt with examples of equipment listed in section 77.1109(c)(3). On the
basis of Commission precedent, I note that an overlap exists between the two forms of
equipment, i.e., some types of auxiliary equipment may also be regarded as mobile equipment.
For example, the Commission treated a pan scraper as mobile equipment even though the safety
standard regards it as auxiliary equipment. Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005)
(examining a case where the inspector cited a pan scraper for a violation of section 77.404, which
applies to mobile equipment).

Although I am sensitive to Respondent’s argument, it is the Secretary who has the
ultimate authority to issue citations when she believes that a violation of a mandatory health or
safety standard has occurred. 30 U.S.C. § 814(a). I will not review whether the Secretary would
have better exercised her discretion by applying section 77.1109(c)(3), as opposed to section
77.1109(c)(1), as Respondent would have me do. That decision is hers alone; it should be made
on the basis of her knowledge and expertise, inasmuch as an administrative agency’s decision not
to prosecute a particular regulatory provision is a decision committed to its absolute discretion.
See Heckler v. Chaney, 470 U.S. 821, 831 (1985). An agency’s decision not to enforce a
particular regulation involves a number of factors, which are peculiarly within its expertise. Id.
at 831. Indeed, the Commission has held that the Secretary has virtually unreviewable discretion
in making decisions not to take particular enforcement action relating to its statutory or
regulatory authority. Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996) (citing
Heckler, 470 U.S. at 831-832). Consequently, I decline Respondent’s invitation to second guess
the Secretary’s choice of regulations to enforce. My decision here rests solely on whether
Respondent violated section 77.1109(c)(1), the provision under which the Secretary issued the
citation.

I determine that the two water pumps are mobile equipment and thus each was properly
cited under section 77.1109(c)(1) for failing to be equipped with a portable fire extinguisher.
Accordingly, I conclude as a matter of law that Respondent committed two violations of section
77.1109(c)(1) when it failed to equip the water pumps at both its Solar Sources #2 Mine and
Craney Mine with portable fire extinguishers, and Citation Nos. 8425618 and 8425664 are
AFFIRMED as written.

2.         Penalty Amount

I have considered the six factors previously discussed above and enumerated in section
110(i) of the Mine Act, see discussion supra, Part IV.A.2, including Respondent’s history of
violations and its demonstrated good faith in achieving rapid compliance after issuance of the
citation. Moreover, I agree with the inspector that any injuries at these two mines were unlikely
to occur as a result of these violations, and that if injuries were to result they could reasonably be
expected to result in lost workdays or restricted duty. I also agree that Respondent’s negligence
was moderate. I determine an appropriate penalty to be $100.00 for Citation No. 8425618 and
$392.00 for Citation No. 8425664.

V. ORDER

In light of the foregoing, IT IS ORDERED that the Secretary’s motion for summary
decision IS GRANTED and Respondent’s motion for summary decision is DENIED.

Citation No. is hereby MODIFIED to “low” negligence with a penalty of $500.00.

Citation Nos. 6682604, 8425618, and 8425664, are hereby AFFIRMED as issued with
penalties of $1,944.00, $100.00, and $392.00, respectively.

WHEREFORE, Respondent Solar Sources, Inc., is ORDERED to PAY a penalty in the
amount of $2,436.00 within 40 days of this decision.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution:

Beau Ellis, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5710

Mary M. Runnells, Esq., Solar Sources, Inc., 1329 S. High St., Bloomington, IN 47401